May 24, 2011

In DOJ Speech, Katyal Addresses Japanese Internment Cases

The mistakes the Justice Department made in defending Japanese internment during World War II did more than harm the reputation of the government, Acting Solicitor General Neal Katyal said in a speech today at the department.

"Ultimately it harmed our commitment to those magnificent words carved on the front of the Supreme Court, at the top: Equal Justice Under Law," said Katyal, speaking in the department's Great Hall to mark Asian American and Pacific Islander Heritage Month.

In his 18-minute speech, Katyal examined what one DOJ lawyer called the suppression of evidence from the high court. At the time, Solicitor General Charles Fahy did not disclose a report from the Office of Naval Intelligence that undermined the legal rationale behind internment. “What does Fahy do? Nothing,” Katyal said. “He decides not to alert the Court.”

Katyal said last summer he was looking into an immigration case—he did not disclose which case—when he came across a couple of briefs that “caused me some concern.” The two former Solicitor General briefs, he said, which examined Chinese exclusion and Indian immigration, got him thinking about the role the office played in defending the Japanese internment program.

“Every solicitor general has advanced the cause of civil rights in various ways,” Katyal said today, addressing more than 100 spectators in the Great Hall. “There have been dark times in our office.”

Toward the end of his remarks, Katyal quoted from Justice Stephen Breyer’s book “Making Our Democracy Work: A Judge’s View,” published last year. The Korematsu case, Breyer wrote, “suggested that the Court was unable or unwilling to make an unpopular decision that would protect an unpopular minority.” Breyer said Korematsu “harmed” the high court.

“I think it did harm the court,” Katyal said. “But it obviously harmed others as well. It harmed approximately 120,000 Japanese Americans. It harmed the department, which led the court, in part, to the results that it reached. It harmed out reputation as lawyers.”

In remarks today at the same event, Attorney General Eric Holder Jr. did not mention the Korematsu case. Holder spoke about diversity at the department. He called Katyal a "key ally" in ensuring that "diversity and equal justice are not merely noble aspirations, but permanent realities for all Americans."